PUBLISHED OPINIONS
TERM 2009 - 2010

Please note: Adobe Acrobat Reader is needed to view and print these files.  You may download it for free by the clicking on the icon.

(To view PDF files)

Click on each link to view opinion

City of East Providence v. International Association of Firefighters Local 850, No. 07-277 (November 20, 2009)

The City of East Providence (city) appealed from a Superior Court order confirming an arbitration award in favor of the International Association of Firefighters, Local 850 (Local 850).   The city contended that the arbitrator’s award was improper because it conferred the benefits of G.L. 1956 chapter 19.1 of title 45, entitled, “Cancer Benefits for Fire Fighters” to its firefighters.  After battling prostate cancer, Battalion Chief James Moniz returned to active duty and sought to convert the forty-four days of sick-leave he had used for cancer treatment back to his sick leave reserve.  Chief Moniz sought to have these days converted based on his eligibility for injured-on-duty benefits through the “Cancer Benefits for Fire Fighters” statute.  The city denied Chief Moniz’s request to convert his sick days, stating in part, that because he was able to return to active duty, he was not entitled to benefits under the “Cancer Benefits for Fire Fighters” statute.

 At arbitration, the city contended that the language of the “Cancer Benefits for Fire Fighters” statute limited its application to municipalities participating in the optional municipal retirement program.  The city further contended that it was exempt from providing injured-on-duty benefits to its cancer afflicted firefighters based on the fact that it had established its own retirement system, as enacted by P.L. 1925, ch. 715.  The Local 850 argued that the “Cancer Benefits for Fire Fighters” statute applied to all firefighters in Rhode Island, and in the alternative, that the city had established a past practice of providing injured-on-duty benefits through the “Cancer Benefits for Fire Fighters” statute for cancer stricken firefighters.  The arbitrator determined that the “Cancer Benefits for Fire Fighters” statute was incorporated into the parties’ collective bargaining agreement through the parties’ adoption of the “Injured-On-Duty” statute and awarded Chief Moniz forty-four days of sick leave to his sick leave reserve.

On appeal, the city argued that the arbitrator exceeded his authority by looking to the “Injured-On-Duty” statute and the “Cancer Benefits for Fire Fighters” statute.  The city further argued that the arbitrator’s award was irrational because it conferred benefits under the “Cancer Benefits for Fire Fighters” statute that the city had neither contemplated, nor funded.

The Supreme Court determined that the arbitrator did not exceed his authority by looking to, and interpreting the relevant, applicable statutes.  Further, the Supreme Court held that the “Cancer Benefits for Fire Fighters” statute provided injured on-duty benefits for all cancer stricken Rhode Island fire fighters.  Finally, the Supreme Court held that the arbitrator’s award was not irrational because all municipalities are required by the “Injured On-Duty” statute to provide on-duty benefits for firefighters and police officers who are injured on-duty, and that classifying cancer as an on-duty injury for firefighters would not cause irreparable harm to the city.  Therefore, the Supreme Court affirmed the Superior Court’s confirmation of the arbitration award. 

Peter Boranian v. Elaine Richer et al, No. 08-324 (November 20, 2009)

 The plaintiff appealed from a Superior Court order granting the defendants motion for leave to reject a court-annexed arbitration award out of time.  The parties had submitted to court-annexed arbitration under the Superior Court Rules Governing Arbitration of Civil Actions.  The arbitrator awarded the plaintiff $45,000, plus interest and costs.  The defendants sought to reject the arbitrator’s award and proceed with trial under Rule 5(a) of the Superior Court Rules Governing Arbitration of Civil Actions.  On May 13, 2008, the defendants filed their rejection with the Superior Court Arbitration Office.  The Defendants’ rejection, however, had missed the twenty-day deadline by one day.  The defendants then moved for leave to reject the arbitrator’s award out of time based on the defendants’ counsel’s incorrect calculation of the deadline date.  The hearing justice found that the defendants’ counsel’s failure to properly calendar the deadline date amounted to excusable neglect, and he granted their motion for leave to reject the arbitrator’s award out of time. 

On appeal, the plaintiff contended that the defendants’ counsel’s failure to timely file the rejection of the arbitrator’s award did not amount to excusable neglect as defined by this Court.  The defendants argued that their counsel’s failure to calculate the proper rejection deadline was excusable neglect and, in the alternative, that Rule 6(d) of the Superior Court Rules of Civil Procedure provided them with an additional day to file their rejection, making their rejection timely. 

The Supreme Court held that the hearing justice abused his discretion in granting the defendants’ motion for leave to reject the arbitrator’s award out of time because the defendants’ reason for missing the deadline was not sufficient to constitute excusable neglect.  Therefore, the Supreme Court reversed the order of the Superior Court.  The Supreme Court also noted that Rule 6(d) did not provide for an additional day when a required act was based on a filing date, rather than a service date. 

 Michael A. Ballard v. State of RI, No. 06-186 (November 19, 2009)

The applicant, Michael A. Ballard, appealed from a Superior Court judgment denying his application for postconviction relief.  Mr. Ballard was convicted of conspiring to abduct three teenagers in 1979.  Specifically, a jury found the applicant guilty of conspiracy to kidnap with intent to extort, kidnapping with intent to extort, kidnapping, assault with a dangerous weapon, and carrying a pistol without a license.  Mr. Ballard was sentenced to life imprisonment on two counts and an aggregate of sixty-five years on the remaining counts.

The applicant raised four issues on appeal.  First, he alleged that the State of Rhode Island did not have jurisdiction to prosecute him because he was not properly removed from federal custody into state custody.  The applicant argued that a writ of habeas corpus and mittimus served on federal authorities is not an appropriate legal procedure for transferring physical custody of a defendant from federal to state authorities.  The Court held, however, that the transfer of custody was proper because the federal authorities no longer had an interest in the applicant and did not contest the transfer. 

Further, Mr. Ballard argued that the trial justice improperly instructed the jury on reasonable doubt when he defined “reasonable doubt” as an “actual or a substantial doubt.” While the applicant’s case was still on direct review, this Court held in another case that “substantial doubt” should not be equated with “reasonable doubt.”  This issue, however, was raised previously by the applicant on direct review and addressed by the Court at that time.  It therefore is barred by the doctrine of res judicata.  The Court also rejected the applicant’s contention that his right to confrontation under the Sixth Amendment to the United States Constitution was violated because the statement of an out-of-court declarant was read into the record, and that individual was neither called as a witness nor subjected to cross-examination.     

The applicant’s final argument was that, although his sentence previously had been reduced twice, it remained “manifestly excessive” and thus violated the Eighth Amendment to the United States Constitution.  The applicant’s sentence initially was reduced by the original trial justice and, thereafter, the Court reduced his sentence further, holding that it was, in fact, manifestly excessive.  The Court held that any further review was barred by the doctrine of res judicata.  The judgment of the Superior Court was affirmed. 

State v. Timothy Scanlon, No. 07-330 (November 17, 2009)

On July 28, 2005, a jury found Timothy Scanlon guilty of three counts of first-degree sexual assault; two counts of felony assault; and one count of first degree robbery.

On appeal, the defendant raises four issues in an effort to overturn his conviction(s).  First, defendant argues that the trial justice erred when he granted the state’s motion in limine,  excluding the testimony of a defense witness who would impeach the credibility of the complaining witness, because the proposed testimony was material not collateral.  Second, the defendant argues that he was entitled to judgment of acquittal for one count of felony assault because the complaining witness’s injuries did not rise to the level of a “protracted loss or impairment of the function of any bodily part, member or organ” as defined in the felony assault statute.  Third, the defendant asserts that his convictions on both felony assault counts merge under a double jeopardy analysis because both occurred as part of a continuous incident.  Finally, the defendant asserts that he is entitled to a new trial because he was prejudiced and denied due process when the state disclosed two pieces of evidence just before trial.

The Supreme Court affirmed the judgments of conviction.  The Court held that the trial justice’s grant of the state’s motion in limine was appropriate because the proposed testimony was extrinsic evidence offered solely to impeach the complaining witness and was therefore properly excluded pursuant to Rule 608(b) of the Rhode Island Rules of Evidence.  The Court also determined that the defendant failed to preserve his right to appeal the denial of his motion for judgment of acquittal on one felony assault count, re: the complaining witness’s injuries, because he did not renew his motion after presenting his own witnesses.  The Court rejected the defendant’s argument that his two felony assault convictions merged under a double jeopardy analysis because the assaults were not part of a continuous incident but rather were two distinct occurrences.  Finally, the Court affirmed the trial justice’s denial of the defendant’s motion for new trial because the defendant failed to object at the time of disclosure or when introduced at trial to the state’s alleged discovery violations. 

State v. Nicki A. Nelson, No. 07-323 (November 13, 2009)

The defendant appealed from Superior Court judgments of conviction for operating a motor vehicle while under the influence of intoxicating liquor, resulting in serious bodily injury in violation of G.L. 1956 § 31-27-2.6 and for driving to endanger resulting in personal injury in violation of § 31-27-1.1.   The defendant raised three arguments on appeal.   

First, the defendant argued that the trial justice committed reversible error when he denied a defense motion for a mistrial after a prospective juror made an inappropriate comment during the voir dire that, as a college professor, she had had students killed by drunk drivers.  The Supreme Court held that the trial justice did not err in denying the defendant’s motion.  The Court reasoned that the prospective juror’s improper statement would not influence the average reasonable juror because it neither revealed unknown information to the panel nor did it imply that the defendant herself was guilty.  Additionally, the Court held that the trial justice’s curative instruction to the jury was sufficient to remedy any prejudicial effect stemming from the statement and an individual voir dire of each juror was unnecessary.

Second, the defendant asserted that the trial justice erred when he admitted the evidence of the blood-alcohol level analysis because of an insufficient showing of chain of custody of the blood specimen because of the inability of the state to indicate the laboratory technician who performed the analysis.  The Court held that it was reasonably probable that the blood specimen had not been tampered with and, therefore, the trial justice did not err when he admitted the results of the blood-alcohol level analysis.  Therefore, any infirmity in the chain of custody properly went to the weight of the evidence rather than its admissibility.

  Finally, the defendant alleged error in the trial justice’s interrogation of two of the state’s witnesses.  The Court first addressed whether the issue of the trial justice’s interrogation of the emergency room physician was properly preserved for review.  Defense counsel deferred his objection until after the trial justice’s interrogation of the witness had concluded when he requested to be heard at sidebar, but the objection was not placed on the record, outside of the jury’s presence, until the following day due to time constraints.  The Court held that the issue was properly preserved despite the deferment of the objection because Rule 614(C) of the Rhode Island Rules of Evidence provides that objections to interrogation by the court “may be made at the time or at the next available opportunity when the jury is not present.”  (Emphasis added.)  In addition to being timely, the Court also concluded that the objection was sufficiently specific to preserve the issue for review because it put the trial justice on notice that the defendant objected to the line of questioning.  The trial justice’s questioning of the second witness, the director of the Rhode Island State Crime Laboratory, properly was preserved for review.   

The Court then addressed the merits of the defendant’s arguments, and held that the trial justice’s interrogation of both witnesses represented reversible error.  The Court reasoned that the trial justice overstepped the narrow parameters of judicial interrogation of witnesses because the trial justice did not limit himself to clarification of justifiably confusing matters for the jury. Although the trial justice did not assume the role of an advocate, his interrogation of the witnesses nonetheless improperly served as an extension of the direct and cross-examinations, and elicited highly prejudicial testimony, and reinforced the defendant’s intoxication to the jury.  Accordingly, the Court sustained the defendant’s appeal in part and denied it in part.  The Court vacated the judgments of conviction and remanded the case to the Superior Court for a new trial. 

Martel Investment Group, LLC v. Town of Richmond et al, No. 08-152 (November 9, 2009)

Martel Investment Group, LLC (Martel) appealed from a Superior Court decision granting summary judgment in favor of the defendant, Town of Richmond (town).  Martel brought suit against the town, contending that the town should be equitably estopped from enforcing an amended zoning ordinance that prohibited Martel from operating an “adult entertainment business.”  Shortly after Martel purchased a parcel of land, formerly the site of a Bickford’s restaurant, the town issued it a building permit that allowed it to begin renovations on the building.  Subsequent investigation by the building official revealed that Martel had not submitted to development-plan review under § 18.54.010.D.2 of the Town of Richmond Zoning Ordinance.  The building official notified Martel that it was required to apply for development- plan review, but Martel delayed seeking development-plan review, and in the interregnum the town’s zoning ordinance was amended to prohibit “adult entertainment businesses.”

After hearing arguments of counsel, the hearing justice entered summary judgment in favor of the Town.  The court primarily relied on this Court’s opinion in Town of Johnston v. Pezza, 723 A.2d 278, 283 (R.I. 1999), in which the Supreme Court held that the doctrine of equitable estoppel does not apply to instances in which a building official acts outside the authority vested in the official by the zoning ordinance.  On appeal, Martel argued that the hearing justice erred in declining to find that the town was estopped from enforcing its zoning ordinances.  The Supreme Court disagreed.  It held that this case was governed by its earlier holding in Pezza and declined to disturb the hearing justice’s decision.  The Court reiterated that a building-permit applicant is responsible for ensuring that his or her application conforms to the relevant zoning ordinances.  Because a building official may not act beyond the authority granted to him or her by law, the building official’s issuance of a building permit without the required development-plan review was ultra vires such that the doctrine of equitable estoppel did not apply.  Accordingly, the judgment of the Superior Court was affirmed.

In re Toryn C, No. 07-294 (November 6, 2009)

The petitioners appealed from a Family Court order dismissing their petition for adoption.  The chief judge dismissed the petition on the grounds that the Family Court did not have jurisdiction to hear the matter because both the petitioners were residents of Massachusetts at all times relevant to the petition.  The Supreme Court affirmed the order of the Family Court dismissing the petition, holding that the facts of the case placed the petition for adoption outside the jurisdiction of the Family Court as delimited in G.L. 1956 § 15-7-4.

Frank Fiorenzano v. Kenneth Lima, No. 08-234 (November 6, 2009)

The plaintiff, Frank Fiorenzano, appealed pro se from a summary judgment granted by the Superior Court in favor of the defendant, Kenneth Lima, with respect to all counts of the plaintiff’s complaint.  On appeal, the plaintiff contended that the hearing justice erred when she granted summary judgment in favor of the defendant; he argued that he should be allowed to proceed with respect to two counts of the underlying complaint: namely, abuse of process and loss of consortium. 

The Supreme Court affirmed the judgment of the Superior Court, holding that the defendant’s actions did not constitute an abuse of process.  The Supreme Court also held that the plaintiff’s loss of consortium claim must also fail because such a claim is derivative in nature and there was no tort judgment in favor of the plaintiff’s spouse to which a loss of consortium claim could relate. 

Loretta Furlan v. Douglas Farrar, No. 08-134 (November 5, 2009)

This case arose from a dispute between a residential landlord and his tenant.  The defendant landlord, Douglas Farrar, appealed from a judgment entered in favor of the pro se plaintiff, Loretta Furlan, after a bench trial in the Superior Court.  The Supreme Court affirmed the judgment of the Superior Court, holding that, because the defendant landlord prevented the plaintiff tenant from accessing the apartment after the plaintiff had called the defendant to terminate the month-to-month tenancy, the plaintiff was entitled to the return of her security deposit minus her unpaid, accrued rent.

State of Rhode Island v. Shane M. Gaspar, No. 07-44 (October 30, 2009)

The defendant, Shane Gaspar, appealed from a Superior Court judgment of conviction on five counts of first-degree sexual assault.  The defendant presented three grounds as a basis for reversal of his conviction and a new trial.  He contended that the trial court committed prejudicial error by (1) permitting the state to introduce the testimony of another woman who had a prior sexual relationship with the defendant under Rule 404(b) of the Rhode Island Rules of Evidence, (2) allowing the state to introduce the complaining witness’s hearsay statements contained in a report prepared by an emergency room doctor, and (3) permitting the state’s medical expert to offer an opinion about the approximate age of the complaining witness’s bruising without providing any foundation for her opinion.

The Supreme Court vacated the judgment of conviction and remanded the case to the Superior Court for a new trial.  The Court held, first, that the testimony presented by the defendant’s former girlfriend about their sexual relationship was inadmissible under Rule 403 because its probative value was substantially outweighed by the risk of unfair prejudice to the defendant.  Moreover, the Court noted that the risk of unfair prejudice was heightened because the state presented the testimony of defendant’s former girlfriend as part of its case-in-chief in order to “anticipatorily impeach” the defendant’s expected testimony.

The Court also found error with the state’s introduction of a narrative summary of the alleged assault taken by the doctor who treated the complaining witness.  The Court held that the doctor’s unredacted medical summary report should not have been admitted at trial because it contained factual details that were unconnected with diagnosis or treatment and that strongly, and explicitly, imputed criminal fault to the defendant.

 On the defendant’s third claim of error, however, the Court held that the trial justice did not abuse her discretion in permitting the doctor to testify about the approximate age of the complaining witness’s bruises.  The Court held that the testimony was not without proper foundation and that the doctor’s qualifications were sufficient to assure the Court that her conclusion was well-grounded.